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Tag Archives: reparations

As discussed in the last blog, whether in Anglo Tort law or in Article 1382 of the 1804 French Civil Code (“Droit of la Responsibilité”), the principle for calculating compensation is similar. In summary, that code says: “Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer.” He who causes the damage, must pay. In English, “any loss caused to a person through the behaviour of another must be repaired by the person whose fault it was that the loss occurred.” The extended version in English is loosely translated as: Reparation to the victim of a crime or a tort must, in principle, be responsible for the complete damage the victim has suffered. Moral damage is taken into account as well as material damage. Indirect damages must be taken into consideration, but only as long as they are revealed as connected to the fact of the tort. In principle, the current damage done at the time only comes into consideration for the calculation of the reparation. In exceptional circumstances, a judge may take into account future damages if, firstly, the realization is certain and if, in addition, the means exists to assess in advance the exact amount of those damages.

Costs include not only environmental damage, but costs to fisheries and the tourism industry. Hundreds of suits have been filed as a result of these provisions against other offenders in a variety of oil spills. None have become issues for the United Nations General Assembly, especially ones that occurred as a result of hostilities. The issue is not about the principle for assessing a claim. The issue is about the venue and the procedure.

Further, since this is a claim made under international law and not domestic law, one principle for assessing the justice of a claim, particularly when the claim is about damages consequent to hostilities, is to discuss the purpose of the damage caused. In WWII, there were over 300 attacks against oil storage depots and refineries according to British and American bombing surveys, the last one in the European theatre against a refinery in Norway in April of 1945. Assessments after the war compared the effects of targeting the oil infrastructure. Compared to other targets, including the bombing of transportation, especially trains, the attacks on oil refineries and oil storage facilities infrastructure in areas controlled by Nazi Germany were considered to be the only unequivocal successes in damaging the German war effort, a conclusion which reaffirmed the opinion not only of Hermann Gӧring, but also Luftwaffe commander Adolf Galland in his book, General der Jagdflieger. Compared to WWII, the two attacks by Israel were pinpricks.

But what about the environmental consequences? Let’s put the El Jiyeh oil spill in comparison to the costs and size of other oil spills. The $850 million dollar total liability estimate included about 25% for cleanup costs. That amount can be compared to the environmental damage costs of the Exxon Valdez oil spill which was at least ten times larger. The latter’s cleanup costs, in a much more difficult and expensive terrain and covering 2,100 km of coastline rather than 170 km, were $3.5 billion. Although the Lebanese oil spill was often equated in the media with the Exxon Valdez spill, the cleanup costs in Lebanon were much less, just over $200 million, in this case an amount reasonably proportionate to the Exxon Valdez cleanup costs.
For another comparison, the costs to Saudi Arabia for the cleanup from the First Gulf War up to 2011 was $700 million Saudi riyal (over $180 million) in environmental rehabilitation in addition to the $45 million contributed internationally. However, compare the 240-336 million gallons of oil spilled from the Sea Island terminal and destroyed tankers in the 1991 Kuwait Gulf War by Iraq, supposedly to foil a US marine landing and to prevent the oil from falling into American hands, with the 5 million gallons spilled in the El Jiyeh disaster. The resulting oil slick in the First Gulf War was over 100 miles long, 42 miles wide and as much as 13 cm. thick in some places, several times the size even of the Exxon Valdez oil spill. Just to cap the 700 wells and douse the fires cost Kuwait $1.5 billion in addition to the $225 million cost to clean up the environmental disaster. The Jiyeh spill was 5% the size of the Gulf spill, yet the cleanup costs were said to be about equivalent.

Take another example, this time from the Second Iraq War in 2002. Rather than an oil spill, consider the much more serious damage to the ozone layer by 60,000-80,000 combat missions that released 2,000 tons of ozone-destroying halons and stealth bombers that released freon fuel additives which, together, were estimated to be the equivalent of the global civilian releases destroying the ozone layer for three months. In neither the first nor the second Iraqi wars was there ever any attempt to attribute responsibilities and costs. No claims were made by the United Nations General Assembly against one of its members for these environmental calamities that occurred in the course of hostilities.

The oil spill can also be placed in the context of commercial as well as military environmental disasters:

The El Jiyeh oil spill was relatively small, less than 5 million gallons, compared to these oil spills ranging from 42 to 185 million gallons. The point of listing these non-military incidents is not to downplay the Lebanese oil spill, but to use these disasters to ascertain how liability is estimated and assessed. In commercial disasters, evidence is collected and analyzed, testimony is heard by a detached party, legal precedents and regulations are cited and, in contrast to the way the issues are handled by the media (the example of Anderson Cooper’s sensationalist coverage of the Deepwater Horizon oil spill is often cited), there is a strenuous effort to avoid sensationalism by those assessing costs.

In the 2010 Gulf of Mexico Deep Water Horizon blowout, BP was required to pay $1 billion, just over the costs for which Israel was held by the UNGA to be liable for an oil spill that was 1/57th the size of the Deep Water Horizon spill.

In the case of these commercial oil spills, there is never an effort at repeating year after year another step in the evaluation process. The way the General Assembly handles the procedure is to insert in each motion a requirement that the Secretary-General report back on results and future action, thereby ensuring another future annual resolution and another opportunity for publicizing Israel’s alleged wrongs. This issue is about distraction from the real culprit, shaming and blaming to make a political point, not the collection of reparations.

When the motion is softened as a “request”, countries can vote for the motion seeing nothing wrong in asking Israel to pay for the damages. Nor do they have to confront the outrageously one-sided nature of the process or the very issue of whether the UN General Assembly was or is an appropriate place to assess blame and costs. Further, the repetition of one UN motion after another, to the exclusion of any other jurisdictions re parallel cases or any comparisons, allows the issue to remain in an isolated silo, in the same manner as the Palestinian refugees, who are treated totally differently than any other refugees. And those who were victims of the environmental disaster suffer the same fate as the Palestinian refugees – compensation is delayed endlessly because the issue of compensation and liability have not been separated. I can find no information that compensation has ever been paid to victims of the El Jiyeh oil spill.

There is another problem. The costs to the fisheries, mostly resulting from the blockade imposed by Israel against Lebanon from 12 July to 9 September 2006, are all viewed as costs to be attributed to the oil spill. The costs associated with loss of restaurant businesses because of the apprehension of Lebanese who arguably would not go to seafood restaurants or eat seafood because of possible effects on their health, are conflated with losses to restaurants because, during a war, there was very little tendency to want to risk eating in a public venue.

Israel is an active participant in the Barcelona Convention for the Protection of the Mediterranean Sea and works with all parties to the convention to promote its aims. Israel offered to work with others in a fair and judicious process to assess costs and liabilities of all environmental damages from the war. The offer was never taken up.

Instead of a separate procedure for determining compensation owed to victims and one for determining the liability for that compensation, the two issues were conflated in the El Jiyeh oil spill. The result is impotency in providing relief to victims in the name of making a political statement. The politicized process has been characterized by initial hyperbole, subsequent significant inflation – monetary, environmental and political – a one-sided assessment (the environmental damage done to Israel by its enemy, Hezbollah, was totally ignored), a singular focus that is decontextualized in both time and space. Precedents are ignored. The legal process is caricatured. The result is politics in its worst form, not justice.

As a final comparison, earlier this week I wrote about the break in the Eilat/Ashkelon oil pipeline 20 km. north of Eilat that took place last Thursday near Be’er Ora. There the spilled oil was also heavy crude, the most difficult to clean up. Initially, the original estimate of the amount of the spill was 1 million litres, but it has since been increased to 3 million litres (700,000 gallons). That means the Arava oils spill was one/seventh of the size of the El Jiyeh spill which, in turn, was one-tenth the size of the average commercial oil spill that attracts widespread media coverage. In both the Arava and the El Jiyeh cases, nature reserves were threatened and the cleanup had to take place swiftly in a very delicate eco-system. So one can also imagine that if the Israeli blockade did prevent a cleanup of the spill for up to a month, how much more disastrous the Lebanese spill, already seven times larger, was than the Israeli spill where there was almost panic that the oil would spill into the delicate ecosystem of the Gulf of Aqaba/Eilat. In the Lebanese oil spill, much of the five million gallons flowed into the Mediterranean Sea.

However, when costs of the cleanup are compared, the Israeli cleanup is expected to cost 17 million Israeli shekels or a little over $4 million, almost one-fiftieth (1/50th) of the cost of the Lebanese cleanup, costs which were so much higher than the costs of most other oil cleanups. Compared to the $850 million assessed against Israel as liability costs, the costs of the Israeli oil spill seem a pittance. The costs in the Arava spill will be, if the estimates are correct, 1/200th of the liability assessed against Israel and 2% of the cleanup costs in the Lebanese oil spill. So I am torn between being appalled at the extent of devastation caused to Lebanon in 2006 and upset at the gross injustice in both procedure and substance that seems so outrageous and disheartening.

But I should not be so shocked. After all, I worked in the late eighties and early nineties with the UN on early warning systems to anticipate and prevent hostilities and was part of the investigating team in the inquiry into the UN role in the Rwanda genocide where I learned firsthand of both the fickleness and impotence of the United Nations.

Even though the adoption of the “Oil Slick on Lebanese Shores” Resolution by the General Assembly is deliberately worded as a request because the UN General Assembly lacks jurisdiction and also to gain as many votes for the resolution as possible, Dr. Nawaf Salam, the Permanent Representative of Lebanon to the United Nations, after the passage of the resolution, stated that the UN ruled that, “Israel has to pay for the damages inflicted on Lebanon in the immediate aftermath of El-Jiyeh attack.” The politics of the resolution is what is important, certainly not the compensation to victims. The Lebanese Permanent Representative to the UN envisioned the resolution as merely paving the way for further compensation in other areas of damage (health, ecosystem services as habitat, potential ground water contamination, and marine diversity) from the 2006 war.

The unique presumption is that Israel alone is liable for environmental damages caused during the 2006 Lebanese War or in any hostilities. Further, only environmental damage to Lebanon and not to Israel is to be considered. Israel is blamed as the aggressor even though, on 12 July 2006, Hezbollah’s military wing, as an exercise in Islamic “resistance”, launched rockets across the Lebanese border with Israel targeting the town of Shlomi and a military outpost at Shebaa Farms. Hezbollah also initiated a cross-border attack against two IDF Humvees, killing five Israeli soldiers and capturing two others. The objective of the Hezbollah aggression was ostensibly to free Arab prisoners held in Israeli jails. Israel retaliated by ground, air and sea attacks. Israeli navy gunships bombarded an electric power station on the coast at Jiyeh that resulted in the oil spill. The naval blockade to prevent the resupply of weapons to Hezbollah, which had fired about 4,000 rockets at northern Israel, may possibly have prevented a speedy cleanup. Security Council resolutions had called for full respect for the Blue Line by both parties and full implementation of the Taif Agreement, of resolutions 1559 and 1680 that required the disarmament of all armed groups in Lebanon. In spite of all this, Israel is considered the aggressor and liable for all costs resulting from the oil spill.

This is not justice. This is propaganda. It is enough, or almost enough, to make a peacenik like myself vote for Harper’s Tories in the next election for its principled stand on this issue at the UN — if it were not for the Harper government’s systematic destruction of the independence of the knowledge base of the Canadian civil service, its disregard of the environment, the lack of attention and progress on substantive issues of concern to aboriginal peoples, an absence of any real initiative to help refugees, and so much more.